In these cases the custom affected the meaning of the words. But it also has the effect of words; as if a merchant employed a broker to sell his ship, and nothing was said about terms, and the broker did something about it, and the ship was sold: if the broker could prove a universal and well-established custom of that place, that for doing what he did under the employment he was entitled to full commissions, he would have them, as much as if they were expressly promised. Any custom will be regarded by the court which comes within the reason of the rule that makes a custom a part of the contract. It comes within the reason only when it is so far established, and 80 well known to the parties, that it must be supposed that their contract was made with reference to it. For this purpose, the custom must be established and not casual, uniform and not varying, general and not personal, and known to all the parties. But the degree in which these characteristics must belong to the custom will depend in each case upon its peculiar circumstances. Let us suppose a contract for the making of an article which has not been made until within a dozen years, and only by a dozen persons. Words are used in this contract of which the meaning is to be ascertained; and it is proved that these words have been used and understood in reference to this article, always, by all who have ever made it, in one way. Then this custom will be permitted to explain and interpret the words of the parties. But if the article had been made a hundred years or more, in many countries and by multitudes of persons, the evidence of this use of these words by a dozen persons in a dozen years might not be sufficient to give to this practice the force of custom. Other facts must be considered; as how far the meaning sought to be put on the words by custom varies from their common meaning in the dictionary, or from general use; and whether other makers of the article use these words in various senses, or use other words to express the alleged meaning. Because the main question is always this: Can it be said that both parties must have used, or ought to have used, these words in this sense, and that each party had good reason to believe that the other party so used them? Thus, when the brief but violent "Morus multicaulis" (or mulberry) speculation prevailed, a few years ago, a man made a contract to sell and deliver a certain number of the trees "a foot high;" and the buyer was permitted to prove that, by the usage and custom of all who dealt in that article, the length was measured to the top of the ripe wood only, rejecting the green and immature top; and the "foot high" was to be so understood. No custom, however, can be proved or permitted to influence the construction of a contract, or vary the rights of the parties, if the custom itself be illegal. For this would be to permit, or even oblige, parties to break the law, because others had broken it. Nor would the courts sanction a custom which was in itself unreasonable and oppressive. There was a vessel cast ashore on the coast of Virginia, and the master sold the cargo on the spot; and on trial the jury found that he was authorized to do so by the usage there; but the Supreme Court of Massachusetts, where the ship and cargo were insured, said that the usage was unreasonable, and they would not allow it. The Supreme Court of Pennsylvania in one case refused to allow a usage, as unreasonable, by which plasterers charged half the size of the windows at the price per square yard agreed on for the plastering of a house. Lastly, no custom, however universal, or old, or known (unless it has actually become law), has any force whatever, if the parties see fit to exclude and refuse it by the words of their contract, or provide that the thing which the custom affects shall be done in a way different from the custom. For a custom can never be set up against either the express agreement or the clear intentions of the parties. HOW CONTRACTS OR AGREEMENTS SHOULD BE MADE. Every agreement should be written, and signed by both parties, and witnessed, where this can be done; although the law absolutely requires witnesses in very few cases, and in none of mere contract. It is prudent, however, to have them; for it is a rule of law that things which cannot be proved and things which do not exist are the same in the law. Every thing agreed upon should be written out distinctly, and care should be taken to say all that is meant, and just what is meant, and nothing else; for, as above stated, it is a rule of law that no oral testimony shall control a written agreement, unless fraud can be proved. Against fraud nothing stands. FORMS ANNEXED TO THIS CHAPTER. (98.) A general agreement, sufficient for many purposes. (100.) A general contract for mechanics' work. (101.) An agreement for purchase and sale of land, in use in the Middle States. (102.) An agreement for sale of land, in use in the Western States. (103.) An agreement for warranty deed, in use in the Western States. (104.) A contract to convey real estate, in use in the Middle States. (105.) An agreement for the purchase of an estate, in use in New England. (106.) An agreement for the sale of an estate by private contract. (107.) An agreement to be signed by an auctioneer, after a sale by auction. (108.) An agreement to be signed by the purchaser, after a sale by auction. (109.) An agreement to make an assignment of a lease. (110.) An agreement for making a quantity of manufactured articles. (111.) An agreement between a trader and a book-keeper. (112.) An agreement for damages in laying out or altering a road. (113.) An agreement between a person retiring from the active part of a business and another who is to conduct the same for their mutual benefit. (114.) A brief building contract. (98.) A GENERAL AGREEMENT, SUFFICIENT FOR MANY PURPOSES. MUTUAL AGREEMENT OF TWO. of A. B., of (place of residence, and business or profession), and C. D., (as before), have agreed together, at (place), on (the day should always be named), and do hereby promise and agree to and with each other, as follows: A. B., in consideration of the promises hereinafter made by C. D. (if there are any such promises), and of (here state any other consideration which A. B. has), promises and agrees to and with C. D., that (here set forth, as above directed, the whole of what A. B. undertakes to do). And C. D., in consideration (set forth consideration and promise as before). WITNESS Our hands, to two copies of this agreement interchangeably. A GENERAL AGREEMENT, AS USED IN THE WESTERN STATES. ARTICLES OF AGREEMENT, Made this day of in the year of our Lord one thousand eight hundred and sixty party of the WITNESSETH, That the said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on to be made and performed, the said party of the first part will part And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of following: dollars, in the manner dollars cash in hand paid, the receipt whereof is hereby acknowledged, and the balance with interest at the rate of per centum per annum, payable annually. And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by shall have the right to sustained, and It is mutually agreed that all the covenants and agreements herein con tained shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties. IN WITNESS WHEREOF, The parties to these presents have hereunto et their hands and seals, the day and year first above written. WITNESSETH, That the party of the first part, for the consideration hereinafter mentioned, covenants and agrees with the party of the second part to perform in a faithful and workmanlike manner the following specified work, viz.: And, in addition to the above, to become responsible for all materials delivered and receipted for; the work to be commenced and to be completed and delivered, free from all mechanic or other liens, on or before the day of And the party of the second part covenants and agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part the sum of dollars, as follows: And it is further mutually agreed by and between both parties, that in case of disagreement in reference to the performance of said work, all questions of disagreement shall be referred to and the award of said referees, or a majority of them, shall be binding and final on all parties. IN WITNESS WHEREOF, We hereunto set our hands and seals, on the day and year first above written. Executed in presence of (101.) (Signatures.) (Seals.) AN AGREEMENT FOR PURCHASE AND SALE OF LAND, IN USE IN THE MIDDLE STATES. WHEREAS, The party of the second part hath agreed to purchase from the party of the first part, either on his own account or for whom it may concern, certain and State of township land in county, And it is agreed that the party of the second part shall have the right to divide and subdivide said land in such manner, and appropriate to his own use so much thereof, as he may see fit, giving and paying to the party of the first part the sum of day of A.D. 18 dollars, on and reserving to or before the his own use any amount for which the whole or any be sold over the said dollars. AND THESE Articles further wITNESS, That the party of the first part, for and in consideration of the premises and the sum of lawful money, to him paid by the party of the second part, at and before the execution hereof, doth covenant, promise, grant, and agree with the party of the second part, his heirs and assigns, upon sale of said lands being made by the party of the first part, to sufficiently grant, convey, and assure said lands, with the appurtenances, to the said party of the second part, or such person or persons as he may direct; and in default of the said party of the second part paying the amount hereinbefore specified at the time mentioned, then these articles are to be deemed and considered cancelled to all intents and purposes, the same as though they never had been made. IN WITNESS WHEREOF, The parties hereto have hereunto set their hands and seals, the day and year first aforesaid. Sealed and delivered in presence of (Signatures.) (Seals) |